S.C. board denies Georgia Ports Authority's appeal of harbor limits

COLUMBIA — After a setback from South Carolina’s environmental board Thursday, the Georgia Ports Authority reaffirmed the legitimacy of the harbor-deepening permits the same board granted it last year.

The S.C. Department of Health and Environmental Control board voted unanimously against hearing the objections of the U.S. Army Corps of Engineers and the Georgia Ports to a separate South Carolina panel’s efforts to restrict the Savannah harbor deepening.

During a conference call meeting Thursday, following an approximately 20-minute closed session, Gov. Nikki Haley’s board appointees issued their decision to deny the request for an appeal hearing. Among the board’s reasons: The Savannah River Maritime Commission’s May 8 “Notice of Proposed Decision” and its various terms and conditions were not a product of the DHEC staff.

“Clearly, the issue about that is the jurisdiction … an active, open case working through the legal system right now,” said DHEC board member Mark Lutz, who represents the 1st Congressional District.

On Tuesday, environmental groups will argue before the state’s high court that DHEC did not have the authority to award the corps a dredging permit last fall.

“DHEC’s action today regarding agency jurisdiction is understandable in light of the ongoing case before the S.C. Supreme Court,” said Robert Morris, senior director of external affairs for the Georgia Ports Authority.

He drew a distinction between Thursday’s board vote and the permits awarded last fall.

“We do not think it in any way reflects negatively upon the DHEC decision in November to approve the 401 Water Quality Certification and Coastal Zone Management,” he said.

The corps and the GPA argue the Savannah River Maritime Commission, a panel created by the S.C. Legislature in 2007, had no authority to impose its own terms and conditions on Georgia’s harbor deepening. They had asked the DHEC board to invalidate the Maritime Commission’s May 8 notice, which includes scaling back the deepening to 45 feet from its current 42 feet, instead of proceeding with the corps’ recommendation it be deepened to 47 feet.

The corps had appealed to DHEC in order to maintain its legal standing before the body while waiting for the Supreme Court to resolve the environmental groups’ lawsuit.

Reached after Thursday’s vote, the corps’ Savannah District spokesman Billy Birdwell declined to comment because his agency had yet to receive official notice from DHEC of the board’s decision.

Both the corps and Georgia Ports said they are also petitioning for a contested case hearing before the S.C. Administrative Law Court.

In the S.C. Supreme Court conflict, the environmental groups argue the DHEC board usurped the powers of the Maritime Commission in November when the board granted the corps permits for water quality and construction in navigable waters.

That challenge is one of several legal and legislative strikes and counter-strikes centered around what some consider to be Georgia’s key public works project.

Environmental groups, represented by the Southern Environmental Law Center, are also opposing the project in federal court on the grounds that a necessary pollution permit was not obtained.

In November the six-member board — all appointed by Gov. Nikki Haley — voted to accept the DHEC staff’s reversal of its initial Sept. 30 denial for the project’s 401 Water Quality Certification and Navigable Waters Permit.

Among South Carolina critics’ concerns is the prospect of a deeper port of Savannah further outstripping the Port of Charleston in global commerce.

A host of other objections are detailed in Maritime Commission chairman Dean Moss’s “Notice of Proposed Decision,” dated May 8.

The Commission laid out a new complaint: That the November settlement that DHEC staff and board members ultimately approved when they tossed aside the Sept. 30 denial was drafted with heavy influence from the corps and Georgia Ports.

“Even the five-page DHEC decision was not really DHEC’s own decision but one crafted by the Savannah Corps and GPA to meet their needs and desires,” wrote Moss, citing emails exchanged between the parties.

The Commission’s notice also criticized the project’s proposed oxygen injection system, the funding assurances to maintain it, and the potential harm to the Savannah estuary. It also contends that the corps’ Environmental Impact Statement in April didn’t fully address the disposal of toxic material, specifically “high levels of cadmium” in the dredge material.

The Commission also questioned the corps’ and Georgia Ports’ commitment to a proposed bi-state Jasper Ocean Terminal, calling the corps’ approach to the $5 billion terminal “schizophrenic.”

“The environmental impacts on wetlands, water quality, and fish and wildlife, independently and collectively, dictate that a shallower depth be authorized,” wrote Moss in the Commission’s “notice.”

“The difference in adverse environmental impacts between controlling depths of (45 and 47-foot depths) is significant, and the difference in economic benefits is minimal.”

The Savannah Harbor Expansion Project’s deeper water is intended to accommodate larger ships coming through the expanded Panama Canal in 2014.

On Thursday, Morris defended the findings that were released by the corps in April as part of an Environmental Impact Study and General Re-evaluation Report. The corps concluded that deepening a stretch of the Savannah River from 42 feet to 47 was economically and environmentally sound.

Morris said the findings were based on 14 years of study that included four federal resource agencies and the resource agencies of both Georgia and South Carolina.

“The studies also clearly showed that the SHEP will support jobs and reduce costs for America’s exporters, which is good for this entire region,” said Morris.